(dissenting).
I am unable to concur in the decision of the majority wherein it is held that the trial court committed prejudicial error in refusing counsel permission to argue to the jury the notations in the hospital record purportedly made by Drs. Rees and Crockett. In considering this question, more of the factual background than is revealed by the opinion must, in the judgment of the writer, be considered.
It is first to be observed that the notations referred to are conclusions of the persons making the notations. The record is absolutely devoid of evidence which would reveal the qualifications of such persons other- than that they are medical doctors. What their training and experience is, is not shown. Insofar as revealed by the record, the' conclusions referred to were drawn without ever seeing the patient. All the record reveals is that when Dr. Sund-wall, the attending physician, was shown a dark sample of urine which indicated that there was probably blood in the urine, he consulted with Dr. Rees and Dr. Crockett. Whether they had anything else before them other than the other notations on the hospital record does not appear. These facts are important, since it is elementary that for a person to give his opinion as an expert, a foundation for his testimony must be laid by showing his qualifications and the extent of information upon which he bases his conclusions. The absence of such showing is more significant when it is recalled that Dr. Crockett and Dr. Rees were both subpoenaed by the plaintiff, were present in court and were not called upon to testify! The only explanation offered in appellant’s brief for not calling the doctors is the following:
“It is reasonable to assume that when Exhibit 2-D was received in evidence, the necessity of calling the doctors whose statements were contained in such exhibit, in great part, disappeared and they were excused.”
In the case of In re Richards’ Estate, cited in the opinion of the court, there is quoted with approval from the prior case of Clayton v. Metropolitan Life Insurance Co., 96 Utah 331, 85 P.2d 819, 823, 120 A.L.R. 1117, the following:
“Before such records can be admitted, in the absence of statute, the of*47fering party must show the necessity of admitting the records without re- , quiring the person or several persons who made the records to testify.”
It cannot be overemphasized that we are not here dealing with notations of fact relative to symptoms, treatment, directions to hospital staff and other factual matters. We are here dealing with the purported opinions of experts.
Counsel were not misled by the stipulation that the hospital records might be received in evidence, into believing that everything that might be contained in the hospital record was competent. During the cross-examination of Dr. Carlquist, when he was confronted with the notations in the record made by Dr. Rees and Dr. Crockett, respondent’s counsel obj ected on the ground that it was not cross-examination and that it was hearsay. He was thereby advised that the contention would be made by counsel that this evidence could not be considered by the jury. Some 70 pages of testimony were thereafter adduced, and there was ample opportunity for counsel to recall Drs. Crockett and Rees and present their evidence to the jury. Whether their conclusions as to the cause of the uremia from which the patient concededly died would be the same at the time of the trial following an autopsy as they were when the notations were made cannot be determined. It is interesting, however, in that connection to note that Dr. Carlquist, the hospital pathologist, was confronted on cross-examination with statements made by him in his autopsy report. After statirig therein the immediate cause of death and the symptoms leading up thereto his report stated: “The obvious answer is an incompatible blood transfusion.” After that, the report went on to state that the doctor performed the autopsy and from that autopsy and other tests made he was unable to determine that there was an incompatible blood transfusion. Thus, the hospital pathologist was of the same opinion, based upon the 'same factual data, as was Dr. Crockett and only changed his opinion upon further information.
Conceding, therefore, in view of the stipulation, that it was error for the court not to permit counsel for the appellant to argue these notations to the jury. — a conclusion which, to say the least, is doubtful — the writer is unable to find therein reversible or prejudicial error under the criteria suggested in the opinion of the court as á basis for determining that question. “It is necessary,” says the opinion, “to survey all of the facts and circumstances disclosed by the record and if, in so doing, the error appears to be of such a nature that it can be said with assurance that it was of no material consequence in its effect upon the trial because reasonable minds would have arrived at the same result, regardless of such error, it would be harmless and the granting of a new trial would not be warranted.” It *48is inconceivable to the writer that but for the alleged error the jury in this case would have arrived at a different result. Had counsel for appellants been permitted to argue these matters to the jury, they could give them dictionary definitions of words therein found, some of which the writer has been unable to find in Webster’s Unabridged Dictionary, and to emphasize the word, “undoubtedly,” in Dr. Crockett’s notation. Counsel could not testify as medical experts, nor could they testify as to the qualifications of the doctors who made the notations. Had they been permitted, however, to argue these entries, counsel for the respondents would undoubtedly point out to the jury the matters hereinbefore set forth to meet any such argument made by counsel for the appellants. In evaluating the probability of a different result had counsel been permitted to so argue, an observation in appellant’s brief is enlightening. All of the hospital records were permitted by the court to be taken to the jury room. Commenting upon that fact, counsel for the appellants in their brief said, “In this connection it may be noted that the jury could not have examined the contents of Exhibit 2-D because they reported that they had agreed on a verdict before counsel had time to take their exceptions to the instructions.” In view of this, and bearing in mind that the ultimate issue to be decided was the negligence of the defendant hospital, there does not appear to the writer a remote possibility that the verdict would have been different had appellant’s counsel been permitted to comment upon the sketchy entries under discussion. Since I agree with the court’s disposition of the other errors assigned, I would affirm the judgment below.
HENRIOD, J., concurs in the dissenting opinion of Mr. Chief Justice McDONOUGH.